Proposing a Model Antilapse Clause

Authors

Raymond C. O'Brien

Abstract

The complexity of state antilapse statutes exacerbates the task of many estate planners seeking to give prudent expression to the postmortem wishes of a client. These statutes vary as to which predeceasing beneficiaries they should apply, who should be the substitute takers to benefit instead of these lapsed beneficiaries, and how to treat beneficiaries who are treated as predeceasing because of renunciation agreements, final decrees of divorce, or, when the beneficiary kills, exploits, or abuses the one from whom the beneficiary would take. Within the modern statutory framework, there exists an abundant array of testamentary devices by which a transferor may transfer property to a transferee, both at death and during lifetime. Wills are traditionally relied upon, but an arsenal of nonprobate contractual transfers, increasingly including revocable intervivos trusts, has developed over the last fifty years. Should antilapse apply to all of these transfer methods? Today’s professional estate planner must accommodate for the mobility of modern clients. Often a transfer instrument is executed in one state under one set of laws, but years later the client dies domiciled in a second state with a vastly different set of laws. The fluidity of modern family structures also adds to this challenge. Traditional lines of consanguineous descent are often less relevant in today’s society with access to no-fault divorce, genetic and gestational surrogacy, various assisted reproductive technologies, stepparent adoption, and an increasing number of nonmarital cohabiting couples, many with children. This Article rejects the idea of a “one size fits all” statute—the idea that a uniform statute addresses all of these complex issues and ideally captures the intent of today’s client. Even if all of the states could agree on a single statute, each law would still remain a mere default rule, easily discarded if the client’s different intention is made clear and convincing. Hence, the goal of this Article is not to propose a model statute but is instead to equip estate planners with three different clauses to offer clients options, with an avoidance of perplexing alternatives. It is reasonable to presume that once a client understands what happens when a named beneficiary predeceases the client, the client may then choose one of the three optional clauses for inclusion in any Last Will and Testament, payableon-death contract, or intervivos trust. This choice, then evidenced clearly and convincingly in one of the three proposed clauses, will enhance the accuracy of the client’s intent and, best of all, facilitate the goal of the professional estate planner.

Recommended Citation

O'Brien, Raymond C. (2023) "Proposing a Model Antilapse Clause," ACTEC Law Journal: Vol. 48: No. 3, Article 3.
Available at: https://scholarlycommons.law.hofstra.edu/acteclj/vol48/iss3/3